What Americans Should Know about the Constitution

Having just finished reading a new biography of H.L. Mencken, I was intrigued when I discovered that the Washington Post had an online section about politics called “Monkey Cage.” It was Mencken who said, “Democracy is the art of running the circus from the monkey cage.” “Monkey Cage’”s mission “is to connect political scientists and the political conversation by creating a compelling forum, developing publicly focused scholars, and building an informed audience. Here, political scientists draw on their own expertise and the discipline’s research to illuminate the news, inform civic discussion, and make some sense of the circus that is politics.” But it was the headline of the first post I read in the comments section that intrigued me even more.

“Too many Americans know too little about the Constitution,” read the headline. That is certainly not fake news, I thought. I saw that ignorance firsthand back when I taught American Government to high-school seniors. Most of them had absolutely no clue about federalism, the separation of powers, the differences between the House and Senate, or anything the Constitution actually said other than “separation of church and state,” which, of course, is a phrase not found in the Constitution. But, as Andrew Rudalevige made clear in his “Monkey Cage” post, ignorance of the Constitution is not limited just to high-school seniors. Adults — including college students and college graduates — are just as ignorant. Rudalevige is the Thomas Brackett Reed Professor of Government at Bowdoin College in Brunswick, Maine. He “specializes in the study of American political institutions, primarily the presidency and the interbranch relations, with a recent focus on presidential management of the executive branch.”

For years now, late-night television hosts, including Jay Leno and Jimmy Kimmel, have sent camera crews onto the sidewalks in major cities and asked random pedestrians questions about U.S. history and government, including questions about the Constitution. The answers (and nonanswers) are comical. Some of them will make you cringe.

Last year the PoliTech political student group at Texas Tech University released a video titled “Politically Challenged” in which students at the university were asked very simple political questions, such as “Who is the vice president?” and gave answers that “were nothing short of appalling.” Of course, the students had no trouble naming famous actors or the actors’ television shows.

A few years ago an American-history literacy survey called “What Do College Graduates Know?” was conducted for the American Council of Trustees and Alumni, “an independent, non-profit organization committed to academic freedom, excellence, and accountability at America’s colleges and universities.” Three hundred college graduates between the ages of 21 to 34 were interviewed, evenly divided between men and women. Only 58 percent could identify the Constitution as the document that “established the division of powers between the states and the federal government.” Some thought it was the Marshall Plan. A little more than half knew that the right to a speedy trial and public trial by an impartial jury was not one of the freedoms protected in the First Amendment. Thirty percent thought that the right to petition the government for redress of grievances, which is part of the First Amendment, was not one of the freedoms protected in the First Amendment. Twenty-two percent placed Lincoln’s famous statement from the Gettysburg Address, “government of the people, by the people, for the people” in the Constitution and more than 50 percent thought it appeared in the Declaration of Independence. Just 17 percent had it correct. Only 38 percent knew that the terms for members of Congress were 6 years for senators and 2 years for representatives. And more than two-thirds of college graduates identified Thomas Jefferson, not James Madison, as the “Father of the Constitution.”

The purpose of Rudalevige’s post was to introduce a small attempt by Bowdoin College to remedy American ignorance of the Constitution. Beginning on June 27, and appearing every Tuesday throughout the summer, the professor began posting a 15-lesson educational video series dedicated to civics titled “Founding Principles.” The series, which Rudalevige narrates, “provides an introductory overview and basic understanding to American government, but one that is crucial to building citizen-leaders, promoting civic engagement, and working toward the common good.” It is “an instructive tool readily available and appropriate for a wide assortment of audiences.” It “lays out what the Constitution says; why it says it; how (and how well) it works now; and how that matters.” I have watched some of the videos. Although they do a good job of telling Americans what the Constitution says, they are inadequate to really inform Americans what they should know about the Constitution.

The Constitution

Another Constitution Day has come and gone. September 17 is designated Constitution Day because it is the anniversary of the signing of the U.S. Constitution in 1787. Federal law requires “each educational institution that receives Federal funds for a fiscal year to hold an educational program on the U.S. Constitution on September 17 of such year for its students.” Yet, in spite of that, and as Rudalevige wrote, too many Americans know too little about the Constitution.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to the national government. As future president James Madison explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about 30 powers given to Congress throughout the Constitution. Everything else is reserved to the states — even without the addition of the Bill of Rights and its Tenth Amendment.

Most of these powers are listed in the 18 paragraphs found in Section 8 of Article I on the Legislative Branch. Congress is therein given the power

To lay and collect taxes, duties, imposts, and excises

To borrow money

To regulate commerce with foreign nations, among the states, and with the Indian tribes

To establish rules and laws regarding naturalization and bankruptcies

To coin money, regulate its value, and fix the standard of weights and measures

To provide for the punishment of counterfeiting

To establish post offices and post roads

To secure to authors and inventors copyrights and patents

To constitute tribunals inferior to the Supreme Court

To define and punish maritime crimes

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water

To raise and support armies

To provide and maintain a navy

To make rules for the government and regulation of the land and naval forces

To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions

To provide for organizing, arming, and disciplining, the Militia

To exercise exclusive legislation over the District of Columbia and federal installations.

The last paragraph gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Elsewhere in the Constitution, Congress is given the authority to admit new states into the Union; propose amendments to the Constitution or call a convention for proposing amendments; make or alter state regulations concerning national elections; direct the location of the place for the trial of a crime not committed within a state; declare the punishment for treason; provide the manner in which the public acts and records in each state are accepted by the others; dispose of and regulate the territory or other property of the United States; impeach and try the impeachment of federal officials; and provide by law for the case of the removal, death, resignation, or inability of the president or vice president.

The Constitution is not a long document, it is not an obscure document, and it is not a document that any American with a computer or smart phone couldn’t access in a matter of seconds. Yet too many Americans know too little about the Constitution.

Notable omissions

Just as important as what the Constitution says, is what it doesn’t say. The Constitution has some notable omissions that Americans should know about.

Americans should know that the Constitution gives the federal government no authority to wage war on drugs. That means no Controlled Substances Act, Office of National Drug Control Policy, drug “czar,” National Drug Control Strategy, Drug Enforcement Agency (DEA), or Domestic Cannabis Eradication/Suppression Program (DCE/SP), and no prohibitions or regulations relating to the buying, selling, growing, processing, transporting, manufacturing, advertising, using, possessing, or “trafficking” of any drug

Americans should know that the Constitution gives the federal government no authority to have anything to do with education. That means no student loans, Pell Grants, math and science initiatives, school breakfast and lunch programs, bilingual-education mandates, Head Start funding, Title IX mandates, teacher-education requirements, teacher-certification standards, school accreditation, educational vouchers, Common Core, standardized-testing requirements, or special-education mandates, and no Department of Education.

Americans should know that the Constitution gives the federal government no authority to have anything to do with medicine. That means no Medicare, Medicaid, State Children’s Health Insurance Program (CHIP), vaccination programs, HIV/AIDS-prevention initiatives, federal laboratories, National Institutes of Health, or Department of Health and Human Services, and no regulation of medical schools, drugs, hospitals, nursing homes, medical devices, or physicians.

Americans should know that the Constitution gives the federal government no authority to have anything to do with insurance. That means no National Flood Insurance Program, no unemployment insurance, no regulation of insurance companies, and no mandate that Americans must have health insurance.

Americans should know that the Constitution gives the federal government no authority to have anything to do with charity. That means no welfare programs, means-tested or otherwise, such as food stamps, Temporary Assistance to Needy Families (TANF); Low Income Home Energy Assistance Program (LIHEAP); Women, Infants, and Children (WIC); Commodity Supplemental Food Program (CSFP); or Elderly Nutrition Program, and no refundable tax credits.

Americans should know that the Constitution gives the federal government no authority to have anything to do with a retirement or disability program. That means no Social Security, Supplemental Security Income (SSI), or Social Security Administration, and no Social Security payroll taxes.

Americans should know that the Constitution gives the federal government no authority to make gun-control laws. That means no gun-dealer licensing; no National Instant Criminal Background Check System; no Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and no regulations concerning guns, ammunition, magazines, gun shows, gun manufacturing, or gun sales. And all of that would be true even without the Second Amendment.

Americans should know that the Constitution gives the federal government no authority to have anything to do with labor. That means no minimum-wage laws, job-training programs, overtime requirements, Equal Employment Opportunity Commission (EEOC), Davis-Bacon Act, or National Labor Relations Board, and no Department of Labor.

Americans should know that the Constitution gives the federal government no authority to fund research or the arts. That means no government scientific or medical research, no funding of clinical trials, no National Endowment for the Humanities (NEH), and no National Endowment for the Arts (NEA).

Americans should know that the Constitution gives the federal government no authority to have anything to do with housing. That means no Section 8 housing vouchers, public housing, homeless assistance grants, Federal Home Loan Mortgage Corporation (Freddie Mac), Federal National Mortgage Association (Fannie Mae), Federal Housing Administration (FHA), or VA loans, and no Department of Housing and Urban Development.

Americans should know that the Constitution gives the federal government no authority to have anything to do with agriculture. That means no subsidies, guarantees, loans, Rural Development Agency, dietary guidelines, or Department of Agriculture.

Americans should know that the Constitution gives the federal government no authority to provide security for private businesses. That means that airports and airlines should handle their own security just like any other business and the Transportation Security Administration (TSA) should be abolished.

An objection

Supporters of the welfare/nanny state frequently raise an objection to the limited authority the federal government has under the Constitution: the “general welfare” clause. The first paragraph of Article I, Section 8, of the Constitution, where this clause is found, reads as follows:

The Congress shall have power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;…

Typical is Huffington Post columnist Paul Abrams:

The general welfare. There is no adjective or adverb qualifying that authority. Article 1, Section 8, Clause 1 grants the United States government the unqualified and unlimited power to raise and spend money, for example, to: provide healthcare for the elderly (or for everyone); provide old-age pension; build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing; educate our children, re-train the unemployed, provide pre-school and day care; fund public health projects; invest in and conduct basic research; provide subsidies for agriculture; save the auto industry; create internets; and, yes, Tea Party Senator Mike Lee (R-UT), even provide emergency aid from natural disasters, and so forth. All subsumed under the authority to spend for the general welfare.

Abrams believes that the authority of the federal government “to raise and spend money for the general welfare is broad, deep and unqualified.”

But as Michael Maharrey of the Tenth Amendment Center points out, “The fact that the Framers followed up the general welfare clause in Article I Sec. 8 with specific enumerated powers” indicates that “the general welfare clause doesn’t really mean unlimited federal authority to fund things beneficial to the nation as a whole.” If the Framers “had intended Congress should have the power to do virtually anything and everything to promote the general welfare, they wouldn’t have bothered to include specific powers.” This is the very point that James Madison — the Father of the Constitution — made in Federalist No. 41:

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

And in a letter written in 1792 just a few years after the adoption of the Constitution,

If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.

And in a letter written years later in 1831,

With respect to the two words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

Clearly, the general welfare clause does not give Congress carte blanche to make any law or spend money on anything it pleases. The enumerated powers in Article I, Section 8, of the Constitution limit the federal government’s spending power to specific things. Any tax collected and any money spent must be for the benefit of the United States as a whole — not for individual, regional, or special interests — but only within the scope of the authority granted to the federal government by the Constitution.

The most ignorant

Yes, too many Americans know too little about the Constitution. But the most ignorant of Americans when it comes to the Constitution are the very people that one would expect should know the most about it: members of Congress. All senators and representatives take an oath of office in which they solemnly swear that they will “support and defend the Constitution of the United States against all enemies, foreign and domestic” and that they will “bear true faith and allegiance to the same.” How are members of Congress supposed to “support and defend” and “bear true faith and allegiance” to the Constitution if they don’t know what it says, and, just as important, what it doesn’t say? Although all members of Congress are educated (only 20 House members have only a high-school diploma), and many have law degrees (36 percent in the House and 54 percent in the Senate), their continual votes to fund the welfare/nanny state show that they don’t have a clue about what the Constitution says or doesn’t say.

Libertarians don’t claim that the Constitution is perfect, ideal, or a libertarian document. But they do maintain that the Constitution is adequate as a check on the welfare/nanny state — if it were just followed. Americans need to know more about the Constitution. Someone has got to teach the members of Congress.

This article was originally published in the October 2017 edition of Future of Freedom.